Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

After Friedrichs, What's Next for Teachers' Unions in the Supreme Court?

The court's deadlocked outcome March 29 in the major case over teachers' union fees for non-members was greeted with great relief by organized labor, and rightly so.

The 4-4 tie in Friedrichs v. California Teachers Associationmeant that the high court affirmed a lower-court ruling rejecting a challenge by dissident teachers to a key precedent authorizing unions to collect fees for collective bargaining from those who refuse to join.

"Abood is the law of the land, and this week's decision leaves that unchanged," Alice O'Brien, the general counsel of the National Education Association, said in reference to the 1977 precedent, Abood v. Detroit Board of Education.

Anti-union forces were left to lament how close they had come in the case to upsetting a 40-year-old status quo, with some holding out faint hopes that the justices will grant a rare rehearing in Friedrichs once a successor to the late Justice Antonin Scalia is confirmed.

More likely is that the issue of whether collecting service fees violates the First Amendment rights of non-union members will bubble up to the Supreme Court again in a year or two.

"We're one justice away from what we view as restoring the First Amendment rights of employees not to have to contribute to a private organization as a condition of working for the government," said Patrick Semmens, the vice president of the National Right to Work Legal Defense Foundation.

The Springfield, Va.-based group has been working for decades to curtail the power of unions, though it was not the group that represented the 10 Southern California teachers in the Friedrichs case who were challenging their state's system of "agency fees" for non-union members. (Those teachers were represented by the Center for Individual Rights and the Washington office of the Jones Day law firm.)

The National Right to Work group is behind some five cases percolating in the lower courts that challenge various aspects of union obligations of non-members.

In a Kentucky case, Cochran v. Jefferson County Board of Education, the foundation is representing non-union educational support personnel in the Jefferson County school system who object to paying agency fees to the American Federation of State, County, and Municipal Employees.

The lawsuit asserts that the objecting education support personnel must pay $12 to $13 in agency fees every two weeks to AFSCME and that procedures for opting out of the amount that goes for the union's political activities, which non-members are not required to pay, are cumbersome at best.

Semmens said the lawsuit had been on hold in federal district court pending the Supreme Court's decision in Friedrichs.

The right-to-work group also has a case pending on behalf of non-union employees of the Hanover, Mass., school system, which also challenges compulsory agency fees.

And Semmens pointed to a case pending in the U.S. Court of Appeals for the 5th Circuit, in New Orleans, involving non-union airline employees challenging a mandatory service fee for collective bargaining.

Although that case, Serna v. Transport Workers Union of America, involves the private sector, it arises under the federal Railway Labor Act, which covers both rail and airline labor relations. Some of the key underpinnings to the Abood case were based on Supreme Court decisions under the Railway Labor Act.

Semmens argued that if the Supreme Court were to take up the Serna case, which is farther along than some of the other cases, any decision by the justices to eliminate the system of mandatory service fees in that area of the economy would also affect the First Amendment analysis for the 23 states where state law authorizes agency fees for teachers and other public employees.

"If the airline workers succeed on their First Amendment claims in Serna, that would effectively overturn Abood," Semmens said.

Judge Garland's Labor Record

So, an agency fee case is bound to return to the Supreme Court at some point.

And since it's now clear that the eight current justices are split on the issue, its fate would seem to come down to the new justice who fills Scalia's seat, whomever and whenever that may be.

Looking at the record of Judge Merrick B. Garland, President Barack Obama's nominee for the Supreme Court vacancy, unions may have reason to be optimistic, and anti-union groups the opposite.

Garland serves as chief judge of a court, the U.S. Court of Appeals for the District of Columbia Circuit, that deals with many labor matters from the private sector, but few involving public-sector unions.

Garland himself, in his 19 years on that court, has ruled in numerous cases involving the National Labor Relations Board, which deals with matters such as union organizing at private employers.

Legal experts who have examined Garland's record in these cases suggest he is generally sympathetic to unions.

"His record on NLRB matters is generally deferential to the labor board, and even when he hasn't been, he has tended to rule for the unions," Semmens said. "Which is not very encouraging to us."

One rare case involving teachers' unions that Garland participated in involved federal financial-reporting requirements for labor organizations. A 1959 federal law, the Labor-Management Reporting and Disclosure Act, requires such reporting by any union with even some private sector members, and that has been interpreted to include the national teachers' unions such as the NEA and the American Federation of Teachers.

But in a 2006 case, the Alabama Education Association, the Delaware Federation of Teachers, and other state affiliates of the NEA and AFT challenged a U.S. Department of Labor regulation that sought to make them subject to the reporting rules even though they were made up solely of public employees.

In the 2006 decision, Alabama Education Association v. Chao, Garland joined a three-judge panel decision that held the Labor Department's interpretation of the federal reporting law was entitled to deference. (Garland did not write the opinion.)

"We think the [state NEA and AFT affiliates] well may have the better reading of the statute—but that is a close question and one we need not decide," the D.C. circuit panel said. "For we are obliged to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation."

The panel went on to hold that the Labor Department had failed to provide a "reasoned analysis" for its change in rules that made state affiliates subject to the reporting law, so it sent the case back to a federal district court.

O'Brien said the Labor Department subsequently changed course, and the state affiliates were not subjected to the reporting requirements.

She declined to express any views on Garland's record on labor cases, saying that the only thing that mattered to the NEA was that he was qualified to fill the vacancy on the court and that the Senate should act on his nomination.

"The bottom line on Garland is you don't determine whether or not an individual is qualified for the Supreme Court based on whether you agree or disagree with one decision or another," O'Brien said.

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